Monday, May 31, 2010

On May 27 the 11th Circuit Court of Appeals affirmed that Kenneth Thomas (2010) (click here for earlier 2009 decision) is a person with MR/ID and should be spared execution as per Atkins. After a quick skim of the decision, it appears this, in my opinion, was the correct decision. Thomas had numerous IQ scores below 70 during his developmental period and clear evidence had been presented regarding significant limitations in adaptive behavior during his developmental period. This is a decision that appears to have been based on an objective evaluation of the facts and law and appropriate interpretation of SEM, and the AAIDD definition of MR/ID.

The field of forensic psychology has experienced remarkable growth over the past three decades. Perhaps the best evidence of this growth is the number of forensic psychology training programs currently enrolling students. Those interested in forensic psychology can choose from several types of programs aimed at different educational outcomes. In addition, opportunities for postdoctoral fellowships, continuing education, and respecialization have become increasingly more available. Despite the increased availability of forensic psychology training programs, there is little consensus regarding the core substantive components of these programs. This article will summarize the existing educational and training models in forensic psychology programs and then identify a core set of competencies that should be considered for inclusion in doctoral-level forensic psychology training curricula to adequately prepare students for the increasingly varied roles assumed by forensic psychologists.

The article discusses the structure of a federal habeas corpus system in California relative to its capacity to prevent more violations of human rights. It examines the appropriate function and purpose of federal review of state convictions and its effectiveness in several petitioners' cases. It also introduces a reformed model of a habeas corpus which is designed to address the prevalence of constitutional violation.

As with phrenology and the polygraph, society is again confronted with a device that the media claims is capable of reading our minds. Functional magnetic resonance imaging ("fMRI"), along with other types of functional brain imaging technologies, is currently being introduced at various stages of a criminal trial as evidence of a defendant's past mental state. This Article demonstrates that functional brain images should not currently be admitted as evidence into courts for this purpose. Using the analytical framework provided by Federal Rule of Evidence 403 as a threshold to a Daubert/Frye analysis, we demonstrate that, when fMRI methodology is properly understood brain images are only minimally probative of a defendant's past mental states and are almost certainly more unfairly prejudicial than probative on balance. Careful and detailed explanation of the underlying science separates this Article from others, which have tended to paint fMRI with a gloss of credibility and certainty for all courtroom-relevant applications. Instead we argue that this technology may present a particularly strong form of unfair prejudice in addition to its potential to mislead jurors and waste the court's resources. Finally, since fMRI methodology may one day improve such that its probative value is no longer eclipsed by its extreme potential for unfair prejudice, we offer a nonexhaustive checklist that judges and counsel can use to authenticate functional brain images and assess the weight these images are to be accorded by fact finders.

A puzzle is raised by cases of false confessions: How could an innocent person convincingly confess to a crime? Postconviction DNA testing has now exonerated over 250 convicts, more than forty of whom falsely confessed to rapes and murders. As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This Article takes a different approach, by examining the substance of false confessions, including what was said during interrogations and how the confession statements were then litigated at trial and postconviction. Doing so sheds light on the phenomenon of confession contamination. Not only can innocent people falsely confess, but all except two of the exonerees studied were induced to deliver false confessions with surprisingly rich, detailed, and accurate information. We now know that those details could not have likely originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process. However, our constitutional criminal procedure does not regulate the postadmission interrogation process, nor do courts evaluate the reliability of confessions. This Article outlines a series of reforms that focus on the insidious problem of contamination, particularly videotaping interrogations in their entirety, but also reframing police procedures, trial practice, and judicial review. Unless criminal procedure is reoriented towards the reliability of the substance of confessions, contamination of facts may continue to go undetected, resulting in miscarriages of justice.

AbstractIn the present experiment we examined whether eye blinks could discriminate between guilty and innocent examinees in a Guilty Knowledge Test (GKT). Based on the assumption that guilty examinees would experience more cognitive load when responding to the key items than to the control items, we hypothesized that they would display fewer eye blinks during the key items than during the control items. For innocent examinees, responding to the key and control items should be equally demanding, and no differences in eye blinks between key and control items were expected. A total of 26 participants took part in an experiment where 13 guilty examinees committed a mock theft (of an exam paper) and the remaining 13 innocent examinees went on with their normal business. All participants underwent a GKT whereby their eye blinks were measured. Both guilty and innocent examinees displayed the pattern of eye blinks that we predicted. The implications of the findings are discussed.

Sunday, May 30, 2010

Hmmmm....interesting stuff related to legal challenges about validity of frequently used forensic instrument and critical journal article that is being blocked by lawsuit of instruments author. Link below.

Saturday, May 29, 2010

This story has been all over the blawgosphere the past few weeks....I might as well join the bandwagon. As the person who sent this to me mentioned, notice the interesting quote of SCOTUS justice Ginsberg

Below is another guest blog post (by Kevin Foley) re: the recent denial of post conviction relief from execution due to mental retardation/intellectual disability. As per ICDP guest post policy, these guest posts are presented "as is" with additional URL links added by the blogmaster. Any guest post does not necessarily represent the opinions of the ICDP blogmaster. Kudos Kevin F for continuing to provide thought provoking guest posts.

Do you have a guest post in you? Please contact me at iap@earthlink.net if you do.

Is another “intellectually disabled” death row inmate due to slip through the cracks? Arizona inmate David Martinez Ramirez presented a Post Conviction Relief (PCR) claim in the Superior Court for Maricopa County seeking a ruling that he was exempt from the death penalty due to mental retardation. His claim was heard by a judge (not a jury) who denied his claim on the basis that Ramirez “failed to show by clear and convincing evidence that he is mentally retarded.”[1] However, a review of the court’s opinion begs the question whether Ramirez would have prevailed had the burden of proof been the more common, “by a preponderance of the evidence” standard.

In his opinion, the trial judge, Thomas W. O’Toole, specifically concluded that, “If the Flynn Effect was required to be used in scoring these tests, the court finds that the defendant has proved by a preponderance of the evidence that his full score IQ score is 70 or lower.”[2] Similarly, the court stated that, “the conflicting evidence shows by a preponderance of the evidence that the defendant had significant adaptive behavior deficits” and “THE COURT FINDS by a preponderance of the evidence that the onset of the Defendant’s adaptive behavior deficits occurred before he reached the age of 18.”[3]

The bottom line of Ramirez is that – with the application of the Flynn Effect – and considering the court’s statements surrounding the elements of a mental retardation (IQ of 70 or below, adaptive behavior deficits, and onset before age 18), Ramirez would have been found to be mentally retarded, except for the application of the heavy-handed “clear and convincing” burden of proof.

Another court, applying the same or similar facts using the lesser standard of proof of “preponderance of the evidence” could achieve– and in fact has achieved - a different result. In the matter of Kenneth Glenn Thomas, the federal habeas court was also faced with multiple IQ scores from an extended period of time, including a high score of 77 – the same highest score obtained by Ramirez.[4] Despite the objections of the state concerning the district court’s application of the standard error of measurement and the Flynn Effect, the federal appeals court held that the district court’s application of these concepts was not reversible error. The Eleventh Circuit observed that, “The district court considered the Flynn Effect just as it considered the other evidence in the record” and it “exercised its discretion to consider the SEM . . . and we cannot say that this was clear error.”[5]

While every case has different facts, and I cannot say beyond peradventure that Ramirez is intellectually disabled, it certainly looks like the outcome turned on the burden of proof. Is this what the U.S. Supreme Court envisioned – different outcomes depending on what state the person calls home?

1 Ruling, State v. Ramirez, Maricopa County Super. Ct. Case No. CR 1989-005726 (Apr. 4, 2007), rev. denied, Case No. CR-07-0177 (Ariz., Nov. 29, 2007) (unpub.), cert. denied, 553 U.S. 1056 (2008).
2 Id. at 4 (n. 5). One could argue that the court would have reached the same conclusion even if the preponderance standard was used – in light of the court’s resolution of the Flynn Effect issue. However, the court appeared to resolve the Flynn Effect issue as an issue of fact, not a matter of law. This assertion is borne out by the court’s analysis surrounding the Flynn Effect and the court’s discussion of the different experts’ approach to using (or not) the Flynn Effect in calculating IQ scores and whether the WAIS-III manual recommends that it be applied. So it is equally arguable that the court would have applied the Flynn Effect if the preponderance standard was used, and the fact that it did not was because the clear and convincing standard was used.
3 Id. at 7.
4 Ramirez obtained an 87 on one testing, but the court seemed to reject this score because “the practice effect skewed and raised the score to 87”. Id. at 2.
5 Thomas v. Allen, __ F. 3d __, Case No. 09-12869 (11th Cir., May 27, 2010).

Objective: The purpose of this study was to examine whether neuropsychological tests translated into Spanish measure the same cognitive constructs as the original English versions. Method: Older adult participants (N = 2,664), who did not exhibit dementia from the Washington Heights Inwood Columbia Aging Project (WHICAP), a community-based cohort from northern Manhattan, were evaluated with a comprehensive neuropsychological battery. The study cohort includes both English (n = 1,800) and Spanish speakers (n = 864) evaluated in their language of preference. Invariance analyses were conducted across language groups on a structural equation model comprising four neuropsychological factors (memory, language, visual-spatial ability, and processing speed). Results: The results of the analyses indicated that the four-factor model exhibited partial measurement invariance, demonstrated by invariant factor structure and factor loadings but nonequivalent observed score intercepts. Conclusion: The finding of invariant factor structure and factor loadings provides empirical evidence to support the implicit assumption that scores on neuropsychological tests are measuring equivalent psychological traits across these two language groups. At the structural level, the model exhibited invariant factor variances and covariances.

The adaptation of assessment instruments to the various European languages.

By Schweizer, Karl

European Journal of Psychological Assessment, Vol 26(2), 2010, 75-76.

Abstract

The peoples of Europe use many languages for communication. This variety of languages is, on the one hand, advantageous for the expression of local specialties and peculiarities; but there are also disadvantages. One of them is the restriction on the applicability of psychological measures since psychological assessment by means of questionnaires, tests, and other assessment instruments can only be accomplished by taking the clients' linguistic capabilities into account. As a consequence, measures have to be developed and validated separately for each and every European language. The development and validation of measures can be achieved in two ways: They can be developed according to one master plan or by following quite different routes. Fortunately, there is presently the tendency to accept major theoretical developments and related measures as master plans and to transfer such measures from the original language into other languages. This makes it possible that many scientists concentrate their research efforts on key concepts and theories.

Sent from KMcGrew iPhone (IQMobile). (If message includes an image-double click on it to make larger-if hard to see)

Saturday, May 22, 2010

Thanks to the SLP blog for listing some of the good blogs related to
criminal law (check via link below) and all the news regarding DP
happenings around the country.
I moniter most all of these blogs on a regular basis but only
forward FYI stories to ICDP if relevant to Atkins cases in some way. I
don't want to have the ICDP blog stuffed with all the valuable info
these other excellent blogs post....want to stay in message and not
clutter the ICDP with info available elsewhere.
I assume that interested ICDP readers will follow these other blogs on
their own if interested in keeping the pulse of all that occurs in the
criminal law blawgosphere.http://sentencing.typepad.com/sentencing_law_and_policy/2010/05/lots-of-good-reading-around-the-blogsphere.html

The Flynn effect, a secular rise in IQ seen throughout the world,was examined on the WISC-R and WISC-III subtests in a longitudinalsample of more than 2,500 school children who were tested between1974 and 2002. Multivariate analysis of variance and multipleregression analyses revealed that all the subtests experiencedsignificant decreases in scores on the introduction of the WISC-III,as expected because of the Flynn effect, with the exceptionof Information and Digit Span.(Mazes was not included in theanalyses because of a limited sample size.) On Picture Arrangement and Coding, however, children who were repeatedly tested onthe WISC-III also experienced significant decreases comparedwith children who were repeatedly tested on the WISC-R. Thesefindings add to the growing literature comparing the magnitudeof the Flynn effect on crystallized versus fluid measures. Implicationsfor special education testing and the current WISC-IV are discussed.

Dr. Frank Gresham has graciously agreed to make his APA 2009 presentation "Intellectual Assessment in Atkins Cases and Use of School Diagnoses" available via this blog....via SlideShare. It can be viewed at the blogmaster's SlideShare account....click here.

Four recent Atkins Court Decisions have been added to the ICDP Court Decisions (n-105) blog side bar. They are listed with a only a few comments--and the comments are gleaned from the emails of the individuals who sent them to me. I've not had time to digest them properly myself in order to provide anything in the way of an in-depth commentary. Those days of commentary seem to be over for me for now.....as I simply can't find the time. I post these for archival purposes and with the hope that others will read them and consider making guest blog commentary posts re: the various issues in any of the decisions.

Hearn v TX (2010): Dale Watson and Stephen Greenspan served as experts in this case. They are two of the experts I've listed at the ICDP Professional Experts blogroll. I personally know they are top-notch experts, so I would recommend reading this decision to capture the essence of their logic, data and testimony. I plan to when I can.

Dunn v LA (2010): Lots of discussion of the use of the Flynn Effect adjustment of IQ scores. If you want to get a feel for the pro/con arguments regarding the courts handling of the FE, check the rather lengthy concurring opinion.

Lizcano v TX (2010) This is a long decision. Of significant interest is the concurring/dissenting opinion of one judge, joined in by two other judges, who question the wisdom (or lack thereof) of the so-called Texas Briseno factors - the court imposed adaptive behavior factors in Texas. The Texas Court of Criminal Appeals (9 judges) is the highest court in the state for criminal cases, so 6 judges appear to uphold the Briseno factors. According to the dissenting-concurring opinion--very interesting.

"The Court's scattershot approach to adaptive deficits--letting the fact-finder hunt and peck among adaptive deficits, unfettered by the specific diagnostic criteria that inform the expert opinion--will allow some capital offenders whom every rational diagnostician would find meets the clinical definition of mental retardation to be executed simply because they demonstrate a few pronounced adaptive strengths along with their manifest adaptive deficits. Better, I think, to be over-inclusive and mistakenly sentence some borderline intelligent capital offenders to the not-inconsiderable penalty of life imprisonment without the possibility of parole than to inadvertently execute even a single mildly mentally retarded offender in violation of the strictures of the Eighth Amendment."

Monday, May 17, 2010

The ICDP Atkins MR/ID Flynn Effect Archive Project was updated today. The total number of reference articles is now n=98. Click here for a description of the project and the various ways the free on-line archive can be accessed. If you are already familiar with the project, you can go directly past "go" and click here to be taken to the click-able map version (from which you can select other viewing options).

If anyone knows of additional articles that should be included, please contact the blogmaster at iap@earthlink.net

Various tidbits that have accumulated in my in-box over the past few weeks, as I've been busy attending to some critical non-blog related work (after all, the blog is non-income producing activity...I do need to pay some bills here-and-there)

Prior studies of criminal sanctioning have focused almost exclusively on individual-level predictors of sentencing outcomes. However, in recent years, scholars have begun to include social context in their research. Building off of this work—and heeding calls for testing the racial and ethnic minority threat perspective within a multilevel framework and for separating prison and jail sentences as distinct outcomes—this paper examines different dimensions of minority threat and explores whether they exert differential effects on prison versus jail sentences. The findings provide support for the racial threat perspective, and less support for the ethnic threat perspective. They also underscore the importance of testing for non-linear threat effects and for separating jail and prison sentences as distinct outcomes. We discuss the findings and their implications for theory, research, and policy.

In this Essay, we take the publication of the seventh edition of the casebook Social Science in Law (2010) as an opportunity to reflect on continuities and changes that have occurred in the application of social science research to American law over the past quarter-century. We structure these reflections by comparing and contrasting the original edition of the book with the current one. When the first edition appeared, courts’ reliance on social science was often confused and always contested. Now, courts’ reliance on social science is so common as to be unremarkable. What has changed - sometimes radically - are the substantive legal questions on which social science has been brought to bear.

Sunday, May 9, 2010

The Open Access Journal of Forensic Psychologyis seeking reviews on forensic instruments from psychologists with deep knowledge and experience in relevant assessment topics. Reviews should follow the general guidelines specified at http://web.me.com/gregdeclue/Site/Rubenzer_2010.html

Reviews are specifically sought for instruments such as The Evaluation of Competency to Stand Trail-Revised, Gudjusson Suggestibility Scales, the Structured Interview for Reported Symptoms-2, Word Memory Test, Nonverbal Medical Symptom Validity Test, VRAG, HCR-20, WAIS-IV (MR determination), MMPI-2-RF, etc. This list is by no means exhaustive and more than one review for major instruments are desired. If in doubt about the suitability of an instrument for review, please contact me. I look forward to your contributions.

About Me

Dr. Kevin McGrew is Director of the Institute for Applied Psychometrics (llc). Additional information, including potential conflicts of interest resulting from commercial test development or other consultation, can be found at The MindHub(TM; http://www.themindhub.com ). General email contact is iap@earthlink.net.